INDEMNIFICATION AGREEMENT dated as of __________________________, between EXPRESS SCRIPTS, INC. (the "Company"), and [Name] ("Indemnitee")
dated
as of __________________________, between
EXPRESS
SCRIPTS, INC. (the "Company"),
and
[Name]
("Indemnitee")
WHEREAS,
the Board of Directors has determined that it is in the best interests of
the
Company and the Company’s stockholders to attract and retain the most capable
persons as directors and officers of the Company and that the Company should
act
to assure such persons that there will be adequate certainty of protection
through insurance and indemnification against risks of claims and actions
against them arising out of their service to and activities on behalf of
the
Company; and
WHEREAS,
the Company has adopted provisions in its current Amended and Restated
Certificate of Incorporation, as amended, and its Third Amended and Restated
By-laws (collectively, the "Charter Documents") providing for indemnification
of
its officers and directors to the fullest extent permitted by Section 145
of the
General Corporation Law of the State of Delaware, and the Company wishes
to
clarify and enhance the rights and obligations of the Company and Indemnitee
with respect to indemnification; and
WHEREAS,
in order to induce and encourage highly experienced and capable persons such
as
Indemnitee to serve and continue to serve as directors and officers of the
Company and in any other capacity with respect to the Company, and to otherwise
promote the desirable end that such persons will resist what they consider
unjustified lawsuits and claims made against them in connection with the
good
faith performance of their duties to the Company, with the knowledge that
certain costs, judgments, penalties, fines, liabilities and expenses incurred
by
them in their defense of such litigation are to be borne by the Company and
they
will receive the maximum protection against such risks and liabilities as
may be
afforded by law, the Board of Directors of the Company has determined that
the
following Agreement is reasonable and prudent to promote and ensure the best
interests of the Company and its stockholders; and
WHEREAS,
the Company desires to have Indemnitee continue to serve as a director or
officer of the Company and in such other capacity with respect to the Company
as
the Company may request, as the case may be, free from undue concern for
unpredictable, inappropriate or unreasonable legal risks and personal
liabilities by reason of Indemnitee acting in good faith in the performance
of
Indemnitee's duty to the Company; and Indemnitee desires to continue so to
serve
the Company, provided, and on the express condition, that he or she is furnished
with the indemnity set forth hereinafter;
Now,
therefore, in consideration of Indemnitee's continued service as a director
or
officer of the Company, the parties hereto agree as follows:
1. Service
by Indemnitee.
Indemnitee will serve and/or continue to serve as a director or officer of
the
Company or, at the Company's request and the agreement of the Indemnitee,
another enterprise, faithfully and to the best of Indemnitee's ability so
long
as Indemnitee is duly elected or appointed and until such time as Indemnitee
is
removed as permitted by law or tenders a resignation in writing.
2. Indemnification.
The
Company shall indemnify Indemnitee to the fullest extent permitted by the
Delaware General Corporation Law (the "DGCL") in effect on the date hereof
or as
such law may from time to time be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Company to
provide
broader indemnification rights than said law permitted the Company to provide
prior to such amendment). Without diminishing the scope of the indemnification
provided by this Section, the rights of indemnification of Indemnitee provided
hereunder shall include but shall not be limited to those rights hereinafter
set
forth, except that no indemnification shall be paid to Indemnitee:
(a) to
the
extent expressly prohibited by the DGCL or the Charter Documents;
(b) for
which
payment is actually made to Indemnitee under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, by-law or agreement
of
the Company or any other company or organization on whose board Indemnitee
serves at the request of the Company, except in respect of any indemnity
exceeding the payment under such insurance, clause, by-law or
agreement;
(c) in
connection with an action, suit or proceeding, or part thereof (including
claims
and counterclaims) initiated by Indemnitee, except a judicial proceeding
or
arbitration pursuant to Section 10 below to enforce rights under this Agreement,
unless the action, suit or proceeding (or part thereof) was authorized by
the
Board of Directors of the Company;
(d) with
respect to any action, suit or proceeding brought by or on behalf of the
Company
against Indemnitee that is authorized by the Board of Directors of the Company,
except as provided in Sections 4, 5 and 6 below.
3. Action
or Proceedings Other than an Action by or in the Right of the
Company.
Except
as limited by Section 2 above, Indemnitee shall be entitled to the
indemnification rights provided in this Section if Indemnitee is a party
or is
threatened to be made a party to any Proceeding (other than an action by
or in
the name of the Company) by reason of the fact that Indemnitee is or was
a
director, officer, employee or agent of the Company, or is or was serving
at the
request of the Company as a director, officer, employee or agent or fiduciary
of
any other entity (including, but not limited to, another corporation,
partnership, joint venture, employee benefit plan or trust); or by reason
of
anything done or not done by Indemnitee in any such capacity. Pursuant to
this
Section, Indemnitee shall be indemnified against all costs, judgments,
penalties, fines, liabilities, amounts paid in settlement by or on behalf
of
Indemnitee, and Expenses actually and reasonably incurred by Indemnitee in
connection with such Proceeding, if Indemnitee acted in good faith and in
a
manner he reasonably believed to be in or not opposed to the best interests
of
the Company, and with respect to any criminal Proceeding, had no reasonable
cause to believe his or her conduct was unlawful.
4. Indemnity
in Proceedings by or in the Name of the Company.
Except
as limited by Section 2 above, Indemnitee shall be entitled to the
indemnification rights provided in this Section if Indemnitee was or is a
party
or is threatened to be made a party to any Proceeding brought by or in the
name
of the Company to procure a judgment in its favor by reason of the fact that
Indemnitee is or was a director, officer, employee or agent or fiduciary
of the
Company, or by reason of anything done or not done by Indemnitee in any such
capacity. Pursuant to this Section, Indemnitee shall be indemnified against
all
costs, judgments, penalties, fines, liabilities, amounts paid in settlement
by
or on behalf of Indemnitee, and Expenses actually and reasonably incurred
by
Indemnitee in connection with such Proceeding if Indemnitee acted in good
faith
and in a manner Indemnitee reasonably believed to be in or not opposed to
the
best interests of the Company; provided, however, that no such indemnification
shall be made in respect of any claim, issue, or matter as to which the DGCL
expressly prohibits such indemnification by reason of any adjudication of
liability of Indemnitee to the Company, unless and only to the extent that
the
Court of Chancery of the State of Delaware or the court in which such action
or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, Indemnitee
is
entitled to indemnification for such costs, judgments, penalties, fines,
liabilities and Expenses as such court shall deem proper.
5. Indemnification
for Costs, Charges and Expenses of Successful Party.
Notwithstanding the limitations of Section 2(d), 3 and 4 above, to the extent
that Indemnitee has been successful, on the merits or otherwise, in whole
or in
part, in defense of any action, suit or proceeding (including an action,
suit or
proceeding brought by or on behalf of the Company) or in defense of any claim,
issue or matter therein, including, without limitation, the dismissal of
any
action without prejudice, or if it is ultimately determined that Indemnitee
is
otherwise entitled to be indemnified against Expenses, Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred in connection
therewith.
6. Partial
Indemnification.
If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the costs, judgments, penalties,
fines,
liabilities or Expenses actually and reasonably incurred in connection with
any
action, suit or proceeding (including an action, suit or proceeding brought
by
or on behalf of the Company), but not, however, for all of the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion
of
such costs, judgments, penalties, fines, liabilities and Expenses actually
and
reasonably incurred to which Indemnitee is entitled.
7. Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the maximum extent
permitted by applicable law, Indemnitee shall be entitled to indemnification
against all Expenses actually and reasonably incurred or suffered by Indemnitee
or on Indemnitee's behalf if Indemnitee appears as a witness or otherwise
incurs
legal or other Expenses as a result of or related to Indemnitee's service
as a
director or officer of the Company, in any threatened, pending or completed
legal, administrative, investigative or other proceeding or matter to which
Indemnitee neither is, nor is threatened to be made, a party.
8. Determination
of Entitlement to Indemnification.
Upon
written request by Indemnitee for indemnification pursuant to Sections 3,
4, 5,
6 or 7 the entitlement of Indemnitee to indemnification, to the extent not
provided pursuant to the terms of this Agreement, shall, other than in case
of a
Change of Control (other than a Change in Control which has been approved
by a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), be determined by the following person or
persons who shall be empowered to make such determination: (a) the Board
of
Directors of the Company by a majority vote of Disinterested Directors, whether
or not such majority constitutes a quorum; (b) a committee of Disinterested
Directors designated by a majority vote of such directors, whether or not
such
majority constitutes a quorum; (c) if there are no Disinterested Directors,
or
if the Disinterested Directors so direct, by Independent Counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee; or (d) the stockholders of the Company. Other than in case of
a
Change of Control (other than a Change in Control which has been approved
by a
majority of the Company's Board of Directors who were directors immediately
prior to such Change in Control), such Independent Counsel shall be selected
by
the Board of Directors and approved by Indemnitee. Upon failure of the Board
so
to select such Independent Counsel or upon failure of Indemnitee so to approve,
such Independent Counsel shall be selected upon application to a court of
competent jurisdiction. Such determination of entitlement to indemnification
shall be made not later than 30 calendar days after receipt by the Company
of a
written request for indemnification. Such request shall include documentation
or
information which is necessary for such determination and which is reasonably
available to Indemnitee. Any Expenses incurred by Indemnitee in connection
with
a request for indemnification or payment of Expenses hereunder, under any
other
agreement, any provision of the Charter Documents or any directors' and
officers' liability insurance, shall be borne by the Company. The Company
hereby
indemnifies Indemnitee for any such Expense and agrees to hold Indemnitee
harmless therefrom irrespective of the outcome of the determination of
Indemnitee’s entitlement to indemnification. If the person making such
determination shall determine that Indemnitee is entitled to indemnification
as
to part (but not all) of the application for indemnification, such person
shall
reasonably prorate such partial indemnification among the claims, issues
or
matters at issue at the time of the determination.
The
Company agrees that if there is a Change in Control of the Company (other
than a
Change in Control which has been approved by a majority of the Company's
Board
of Directors who were directors immediately prior to such Change in Control)
then the entitlement of Indemnitee with respect to all matters thereafter
arising concerning the rights of Indemnitee to indemnity payments under this
Agreement or any other agreement or Charter Document now or hereafter in
effect
relating to events indemnifiable under this Agreement, shall be determined
by
Independent Counsel in a written opinion. In case of a Change of Control
(other
than a Change in Control which has been approved by a majority of the Company's
Board of Directors who were directors immediately prior to such Change in
Control), Independent Counsel shall be selected by Indemnitee and approved
by
the Company (which approval shall not be unreasonably withheld). Upon failure
of
the Indemnitee so to select such Independent Counsel or upon failure of the
Company so to approve, such Independent Counsel shall be selected upon
application to a court of competent jurisdiction. Independent Counsel, among
other things, shall render its written opinion to the Company and Indemnitee
as
to whether and to what extent the Indemnitee would be permitted to be
indemnified under applicable law. The Company agrees to pay the reasonable
fees
of the Independent Counsel referred to above and to indemnify fully such
counsel
against any and all expenses (including attorneys' fees), claims, liabilities
and damages arising out of or relating to this Agreement or its engagement
pursuant hereto.
9. Presumptions
and Effect of Certain Proceedings.
The
Secretary of the Company shall, promptly upon receipt of Indemnitee’s request
for indemnification, advise in writing the Board of Directors or such other
person or persons empowered to make the determination as provided in Section
8
above that Indemnitee has made such request for indemnification. Upon making
such request for indemnification, Indemnitee shall be presumed to be entitled
to
indemnification hereunder and the Company shall have the burden of proof
in
making any determination contrary to such presumption. If the person or persons
so empowered to make such determination shall have failed to make the requested
determination with respect to indemnification within 30 calendar days after
receipt by the Company of such request, a requisite determination of entitlement
to indemnification shall be deemed to have been made and Indemnitee shall
be
absolutely entitled to such indemnification, absent actual and material fraud
in
the request for indemnification. The termination of any Proceeding described
in
Sections 3 or 4 above by judgment, order, settlement or conviction, or upon
a
plea of nolo contendere or its equivalent, shall not, of itself: (a) create
a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests
of
the Company, or, with respect to any criminal Proceeding, that Indemnitee
had
reasonable cause to believe that Indemnitee's conduct was unlawful; or (b)
otherwise adversely affect the rights of Indemnitee to indemnification except
as
may be provided herein.
10. Remedies
of Indemnitee in Cases of Determination not to Indemnify or to Pay
Expenses.
In the
event that a determination is made that Indemnitee is not entitled to
indemnification hereunder or if payment has not been timely made following
a
determination of entitlement to indemnification pursuant to Sections 8 and
9
above, or if Expenses are not paid pursuant to Section 15 below, Indemnitee
shall be entitled to final adjudication in a court of competent jurisdiction
of
entitlement to such indemnification or payment. Alternatively, Indemnitee
at
Indemnitee's option may seek an award in an arbitration to be conducted by
a
single arbitrator pursuant to the rules of the American Arbitration Association,
such award to be made within sixty days following the filing of the demand
for
arbitration. The Company shall not oppose Indemnitee’s right to seek any such
adjudication or award in arbitration or any other claim. The determination
in
any such judicial proceeding or arbitration shall be made de novo and Indemnitee
shall not be prejudiced by reason of a determination (if so made) pursuant
to
Sections 8 or 9 that Indemnitee is not entitled to indemnification. If a
determination is made or deemed to have been made pursuant to the terms of
Section 8 or 9 above that Indemnitee is entitled to indemnification, the
Company
shall be bound by such determination and is precluded from asserting that
such
determination has not been made or that the procedure by which such
determination was made is not valid, binding and enforceable. The Company
further agrees to stipulate in any such court or before any such arbitrator
that
the Company is bound by all the provisions of this Agreement and is precluded
from making any assertions to the contrary. If the court or arbitrator shall
determine that Indemnitee is entitled to any indemnification or payment of
Expenses hereunder, the Company shall pay all Expenses actually and reasonably
incurred by Indemnitee in connection with such adjudication or award in
arbitration (including, but not limited to, any appellate
Proceedings).
11. Other
Rights to Indemnification.
Indemnification and payment of Expenses provided by this Agreement shall
not be
deemed exclusive of any other rights to which Indemnitee may now or in the
future be entitled under any provision of the Charter Documents or other
organizational documents of the Company, vote of stockholders or Disinterested
Directors, provision of law, agreement or otherwise. To the extent that a
change
in the DGCL (whether by statute or judicial decision) permits greater
indemnification by agreement than would be afforded currently under the Charter
Documents and this Agreement, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits so afforded
by
such change.
12. Expenses
to Enforce Agreement.
In the
event that Indemnitee is subject to or intervenes in any Proceeding in which
the
validity or enforceability of this Agreement is at issue or seeks an
adjudication or award in arbitration to enforce Indemnitee's rights under,
or to
recover damages for breach of, this Agreement, Indemnitee, if Indemnitee
prevails in whole or in part in such action, shall be entitled to recover
from
the Company and shall be indemnified by the Company against any actual Expenses
incurred by Indemnitee.
13. Continuation
of Indemnity.
All
agreements and obligations of the Company contained herein shall continue
during
the period Indemnitee is a director, officer, employee or agent of the Company
or is serving at the request of the Company as a director, officer, employee
or
agent or fiduciary of any other entity (including, but not limited to, another
corporation, partnership, joint venture or trust) of the Company and shall
continue thereafter with respect to any possible claims based on the fact
that
Indemnitee was a director, officer employee or agent of the Company or was
serving at the request of the Company as a director, officer, employee or
agent
or fiduciary of any other entity (including, but not limited to, another
corporation, partnership, joint venture or trust). This Agreement shall be
binding upon all successors and assigns of the Company (including any transferee
of all or substantially all of its assets and any successor by merger or
operation of law) and shall inure to the benefit of the heirs, personal
representatives and estate of Indemnitee.
14. Notification
and Defense of Claim.
Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee
will, if a claim in respect thereof is to be made against the Company under
this
Agreement, notify the Company in writing of the commencement thereof; but
the
omission so to notify the Company will not relieve it from any liability
that it
may have to Indemnitee. Notwithstanding any other provision of this Agreement,
with respect to any such Proceeding of which Indemnitee notifies the
Company:
(a) The
Company shall be entitled to participate therein at its own expense;
and
(b) Except
as
otherwise provided in this Section 14(b), to the extent that it may wish,
the
Company, jointly with any other indemnifying party similarly notified, shall
be
entitled to assume the defense thereof, with counsel satisfactory to Indemnitee.
After notice from the Company to Indemnitee of its election so to assume
the
defense thereof, the Company shall not be liable to Indemnitee under this
Agreement for any expenses of counsel subsequently incurred by Indemnitee
in
connection with the defense thereof except as otherwise provided below.
Indemnitee shall have the right to employ Indemnitee's own counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice
from
the Company of its assumption of the defense thereof shall be at the expense
of
Indemnitee unless (i) the employment of counsel by Indemnitee has been
authorized by the Company, (ii) Indemnitee shall have reasonably concluded
that
there may be a conflict of interest between the Company and Indemnitee in
the
conduct of the defense of such action or (iii) the Company shall not within
60
calendar days of receipt of notice from Indemnitee in fact have employed
counsel
to assume the defense of the action, in each of which cases the fees and
expenses of Indemnitee's counsel shall be at the expense of the Company.
The
Company shall not be entitled to assume the defense of any Proceeding brought
by
or on behalf of the Company or as to which Indemnitee shall have made the
conclusion provided for in (ii) above; and
(c) If
the
Company has assumed the defense of a Proceeding, the Company shall not be
liable
to indemnify Indemnitee under this Agreement for any amounts paid in settlement
of any Proceeding effected without the Company's written consent. The Company
shall not settle any Proceeding in any manner that would impose any penalty
or
limitation on or disclosure obligation with respect to Indemnitee without
Indemnitee’s written consent. Neither the Company nor Indemnitee will
unreasonably withhold its consent to any proposed settlement.
15. Payment
of Expenses.
All
Expenses incurred by Indemnitee in advance of the final disposition of any
Proceeding shall be paid by the Company at the request of Indemnitee, each
such
payment to be made within twenty calendar days after the receipt by the Company
of a statement or statements from Indemnitee requesting such payment or payments
from time to time. Indemnitee’s entitlement to such Expenses shall include those
incurred in connection with any Proceeding by Indemnitee seeking a judgment
in
court or an adjudication or award in arbitration pursuant to this Agreement
(including the enforcement of this provision). Such statement or statements
shall reasonably evidence the expenses and costs incurred by Indemnitee in
connection therewith and shall include or be accompanied by an undertaking,
in
substantially the form attached hereto as Exhibit 1, by or on behalf of
Indemnitee to reimburse such amount if it is finally determined, after all
appeals by a court of competent jurisdiction that Indemnitee is not entitled
to
be indemnified against such Expenses by the Company as provided by this
Agreement or otherwise. Indemnitee's undertaking to reimburse any such amounts
is not required to be secured.
16. Separability;
Prior Indemnification Agreements.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including without
limitation, all portions of any paragraphs of this Agreement containing any
such
provision held to be invalid, illegal or unenforceable, that are not by
themselves invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby, and (b) to the fullest extent possible, the provisions
of
this Agreement (including, without limitation, all portions of any paragraph
of
this Agreement containing any such provision held to be invalid, illegal
or
unenforceable, that are not themselves invalid, illegal or unenforceable)
shall
be construed so as to give effect to the intent of the parties that the Company
provide protection to Indemnitee to the fullest enforceable extent. This
Agreement shall supersede and replace any prior indemnification agreements
entered into by and between the Company and Indemnitee and any such prior
agreements shall be terminated upon execution of this Agreement.
17. Headings;
References; Pronouns.
The
headings of the sections of this Agreement are inserted for convenience only
and
shall not be deemed to constitute part of this Agreement or to affect the
construction thereof. References herein to section numbers are to sections
of
this Agreement. All pronouns and any variations thereof shall be deemed to
refer
to the masculine, feminine, neuter, singular or plural as
appropriate.
18. Definitions.
For
purposes of this Agreement:
(a) "Change
in Control" shall be deemed to have occurred if (i) any "person" (as such
term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as
amended), other than a trustee or other fiduciary holding securities under
an
employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing 25% or more of the
total
voting power represented by the Company's then outstanding Voting Securities,
or
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company
and
any new director whose election by the Board of Directors or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election
was
previously so approved, cease for any reason to constitute a majority thereof,
or (iii) the stockholders of the Company approve a merger or consolidation
of
the Company with any other corporation, other than a merger or consolidation
which would result in the Voting Securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into Voting Securities of the surviving
entity) at least 65% of the total voting power represented by the Voting
Securities of the Company or such surviving entity outstanding immediately
after
such merger or consolidation, or the stockholders of the Company approve
a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of (in one transaction or a series of transactions)
all or substantially all the Company's assets.
(b) “Disinterested
Director” means a director of the Company who is not or was not a party to the
Proceeding in respect of which indemnification is being sought by
Indemnitee.
(c) "Expenses"
includes, without limitation, expenses (including, without limitation,
interests, assessments and other charges) incurred in connection with the
defense or settlement of any and all investigations, judicial or administrative
proceedings or appeals, attorneys' fees, witness fees and expenses, fees
and
expenses of accountants and other advisors, retainers and disbursements and
advances thereon, the premium, security for, and other costs relating to
any
bond (including cost bonds, appraisal bonds or their equivalents), and any
expenses of establishing a right to indemnification under Sections 8, 10
and 12
above but shall not include the amount of judgments, fines or penalties actually
levied against Indemnitee.
(d) “Independent
Counsel” means a law firm or a member of a law firm that neither is presently
nor in the past five years has been retained to represent: (i) the Company
or
Indemnitee in any matter material to either such party, or (ii) any other
party
to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company
or Indemnitee in an action to determine Indemnitee’s right to indemnification
under this Agreement.
(e) "Proceeding"
includes any threatened, pending or completed investigation, action, suit
or
other proceeding, whether brought in the name of the Company or otherwise,
against Indemnitee, for which indemnification is not prohibited under Sections
2(a)-(c) above and whether of a civil, criminal, administrative or investigative
nature, including, but not limited to, actions, suits or proceedings in which
Indemnitee may be or may have been involved as a party or otherwise, by reason
of the fact that Indemnitee is or was a director, officer, employee or agent
of
the Company, or is or was serving, at the request of the Company, as a director,
officer, employee or agent or fiduciary of any other entity, including, but
not
limited to, another corporation, partnership, joint venture or trust, or
by
reason of anything done or not done by Indemnitee in any such capacity, whether
or not Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can be provided
under this Agreement.
(f) "Voting
Securities" means any securities of the Company which vote generally in the
election of directors.
19. Other
Provisions.
(a) This
Agreement shall be interpreted and enforced in accordance with the laws of
Delaware.
(b) This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. Only one such counterpart signed by
the
party against whom enforceability is sought needs to be produced as evidence
of
the existence of this Agreement.
(c) This
agreement shall not be deemed an employment contract between the Company
and any
Indemnitee who is an officer of the Company, and, if Indemnitee is an officer
of
the Company, Indemnitee specifically acknowledges that Indemnitee may be
discharged at any time for any reason, with or without cause, and with or
without severance compensation, except as may be otherwise provided in a
separate written contract between Indemnitee and the Company.
(d) Upon
a
payment to Indemnitee under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of Indemnitee to recover
against
any person for such liability, and Indemnitee shall execute all documents
and
instruments required and shall take such other actions as may be necessary
to
secure such rights, including the execution of such documents as may be
necessary for the Company to bring suit to enforce such rights.
(e) No
supplement, modification or amendment of this Agreement shall be binding
unless
executed in writing by both parties hereto. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute
a
continuing waiver.
SIGNATURE
PAGE TO FOLLOW
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on and as
of
the day and year first above written.
EXPRESS
SCRIPTS, INC.
By:___________________
Name:_________________
Title:__________________
INDEMNITEE
_______________________ [Name]
EXHIBIT
1
UNDERTAKING
TO REPAY INDEMNIFICATION EXPENSES
I
___________________________________________________, agree to reimburse the
Company for all expenses paid to me by the Company for my defense in any
civil
or criminal action, suit, or proceeding, in the event, and to the extent
that it
shall ultimately be determined that I am not entitled to be indemnified by
the
Company for such expenses.
Signature______________________
Typed
Name___________________
Office________________________
__________________
) ss:
Before
me
______________________, on this day personally appeared ___________________,
known to me to be the person whose name is subscribed to the foregoing
instrument, and who, after being duly sworn, stated that the contents of
said
instrument is to the best of his/her knowledge and belief true and correct
and
who acknowledged that he/she executed the same for the purpose and consideration
therein expressed.
GIVEN
under my hand and official seal at ________, this _______ day of ___________,
200__.
______________________________
Notary
Public
My
commission expires:
